Wednesday, April 16, 2003

The Pryor nomination (cont'd): his too-loose treatment of precedential caselaw

The supporters of Bill Pryor's nomination will say – just as the supporters of any judicial nomination say – that he will avoid deciding cases according to his own personal views, but will instead adhere faithfully to existing precedent whenever that precedent points towards the answer in a case that comes before him. This is wrapped up in the talking point that many conservatives use these days, now that they are the ones picking the appellate judges: that nearly all questions of law coming before the federal appellate bench have one correct answer that can be divined from existing precedent (and other authoritative legal sources) by a smart person working in good faith. So, they say, our concern about the ideologies of judicial nominees is overblown and misplaced; we should only be focusing on competence and honesty.

To test their hypothesis, and to see how it fits the record of 11th Circuit nominee Bill Pryor, let's look at the recent Supreme Court case of Hope v. Pelzer, in which prison guards had been sued for violating the constitutional rights of a prisoner. The guards handcuffed him to a "hitching post" outdoors, with his arms raised above his shoulders, for hours on end. Now, because of the peculiar legal doctrine of "qualified immunity," in order to prevail the plaintiff had to show not only that this violated his constitutional rights, but also that the violation was so crystal-clear that it would have been obvious to any reasonable government official.

Fortunately for the plaintiff, there was a precedent right on point: a case decided by the Fifth Circuit Court of Appeals (the predecessor to the Eleventh, the Court to which Pryor has been nominated). The Supreme Court cited and quoted that opinion as follows:

Gates v. Collier 501 F. 2d 1291. That opinion squarely held that several of those "forms of corporal punishment run afoul of the Eighth Amendment [and] offend contemporary concepts of decency, human dignity, and precepts of civilization which we profess to possess." Id., at 1306. Among those forms of punishment were "handcuffing inmates to the fence and to cells for long periods of time, ... and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods." Ibid.

And so, said the Supreme Court (with a majority that included Justices O'Connor and Kennedy), this was one of those cases where the right legal answer should have been obvious not only to every person who is learned in the art of legal reasoning, but also even to every non-lawyer prison guard: it was just that obvious, under that clear precedent. (Indeed, said the Supreme Court, it was perhaps obvious even if you looked only at the Supreme Court's own precedents, even leaving aside that Fifth Circuit case). While the Eleventh Circuit had wrongly held that the guards were entitled to immunity (based on the Circuit's too-strict qualified immunity doctrine), the Circuit got the obviously correct answer to the underlying legal question: this was a violation of the prisoner's constitutional rights.

Where does Bill Pryor fit in? It's that, when he and lawyers under his direction were representing the guards in the Supreme Court in this case, he doggedly argued that the Constitution allowed the conduct that the Supreme Court held that any reasonable person should know that it prohibited. Not only did he argue (wrongly) that the guards were entitled to immunity; further than that, he argued vigorously that the Fifth Circuit precedent didn't really mean what it said, and that this sort of thing was perfectly lawful. This was one of those cases where precedent points with absolute certainty towards one correct answer, and Bill Pryor avoided that answer with all his strength. The Supreme Court recognized that Fifth Circuit precedent (and other law) was so clear, that every reasonable public official in Alabama – even one with no law degree – would have known that this behavior was unconstitutional. But Bill Pryor placed himself outside the bounds of "reasonable," in his attempts to evade the force of that precedent.

As I've noted before, you can't write off Bill Pryor's legal arguments in this sort of case as being merely "he was a lawyer, representing a client." As Pryor emphasized himself in his amicus brief to the Fifth Circuit in the gun advocates' favorite cause celebre, U.S. v. Emerson, he has very wide discretion in deciding on his own what legal positions he thinks are deserving of his advocacy, based on his view of what is best for the State and its citizens. And he thought it best to advocate for this cruel and unusual punishment, despite the crystal-clear precedent forbidding it. Had he not thought this barbaric practice deserved to be defended with the clout of the State of Alabama, he could easily have helped the guards find some brilliant private lawyer who would have taken the case pro bono for the glory of arguing in the Supreme Court; but he wanted to pursue his vision of the State's Right to handcuff prisoners to the hitching post, even though there was crystal-clear precedent forbidding it.

Did he know how tenuous his arguments were, in the face of clear precedent against him? Or does he just see precedents that way – as being quite narrow, not really having the full power of what their words say, and therefore subject to revision according to his own views of what's legally right? I don’t think it's that important to choose between those two possible descriptions, to decide whether his arguments were knowingly disingenuous or whether he simply harbors an unreasonable view of how strongly he is bound by precedent; in either event, Hope v. Pelzer is a warning of how Bill Pryor would likely treat the accumulated wisdom of precedents if he were confirmed to the federal bench.

This will be the last post on Pryor for at least a few days, as I return to other topics; I hope that this series has been informative. For earlier installments, see here and work backwards.

UPDATE: If you're interested in a response to this post from a self-described "Southern Federalist" and my response to him, see here and the comments to that post.

In case any entity decides that this constitutes a communication about my services, let me point out that:
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.